Delay v. Foster

• Decision Date: 28 December 1921
• Parties: JOHN DELAY, Respondent, v. OSCAR FOSTER, Appellant
• Court: Idaho Supreme Court

203 P. 461

34 Idaho 691

JOHN DELAY, Respondent, v. OSCAR FOSTER, Appellant

Supreme Court of Idaho

December 28, 1921

PARTNERSHIP-ACTION AT LAW BETWEEN PARTNERS-PLEADING AND PRACTICE-COSTS.

1. A partner who assumes to dissolve the partnership before the end of the term agreed on in the partnership articles is liable in an action at law against him by his copartner for the breach of the agreement to respond in damages for the value of the profits which the plaintiff would otherwise have received, unless the action necessarily involves an accounting between the partners.

2. C S., sec. 7207, subd. 3, which provides that costs are allowed of course to the successful party in an action for the recovery of money or damages, when the plaintiff recovers $100 or over, applies to actions commenced in the district court. It does not apply to an action commenced in a probate or justice court which by change of venue is tried in the district court.

3. A successful party should not be disallowed fees for witnesses who are subpoenaed and attend upon the trial, for the reason alone that they were not sworn and examined in the case; but the party should make a satisfactory showing as to the reasons for the attendance of the witnesses and the causes which made it unnecessary for them to testify.

4. A party to an action in a justice court who asks for and obtains an unwarranted change of venue, in order to anticipate and forestall an adverse ruling and thus by his own action prevents a trial of the cause, fails to make a satisfactory showing as to the cause which made it unnecessary for the witnesses to testify. In such case the party waives the right to tax as costs the fees and mileage of his witnesses in attendance upon the justice court.

5. Where a party obtains a change of venue to the probate court knowing at the time that the probate judge will be a ma- terial witness and that another change of venue will be necessary, he is not justified in summoning his witnesses to attend upon the probate court, and in delaying the presentation of his motion for a change of venue from that court until the day set for the hearing of the cause. Under such circumstances he is not entitled to tax as costs the fees and mileage of his witnesses in attendance upon the probate court.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. R. N. Dunn, Judge.

Action for damages for ouster of a partner from a partnership. Judgment for plaintiff. Modified.

Judgment affirmed. No costs awarded on this appeal.

McFarland & McFarland, for Appellant.

"An action at law by one partner against his copartner will not lie on the claim growing out of the partnership transactions until the business is wound up and the accounts finally settled." (20 R. C. L. 924; 30 Cyc. 461.)

"Costs can be imposed and recovered only in cases where there is statutory authority therefor." (11 Cyc. 24; Rhodenbaugh v. Stingel, 31 Idaho 594, 174 P. 604.)

"Where the cause has not been set for trial, or is improperly listed, a party cannot tax as costs witness fees of witnesses for attendance." (11 Cyc. 119.)

Lynn W Culp, for Respondent.

"Evidence of profits realized during the continuance of the partnership may be received in evidence as aiding to estimate profits which would have been realized thereafter had the firm been continued." (Bagley v. Smith, 10 N.Y. 489, 61 Am. Dec. 756; Taylor v. Nelson, 26 Cal.App. 681, 147 P. 1189; Gilbert v. Grubel, 82 Kan. 476, 108 P. 798; 30 Cyc. 465.)

The provisions of sec. 7210, C. S., apply to actions brought originally in the district court, and not to those originally brought in a justice's court and appealed to the district court. (Roseborough v. Whittington, 15 Idaho 100, 96 P. 437.)

RICE, C. J. Budge, McCarthy and Lee, JJ., and Featherstone, District Judge, concur.

OPINION

RICE, C. J.

The complaint alleged in substance that respondent and appellant entered into a partnership agreement for the purchase of certain cattle, the purchase price to be furnished by appellant. Respondent agreed to kill and market the animals, the profits after paying the necessary expenses to be equally divided between them; that pursuant to said agreement the cattle were purchased; that three of them were butchered by respondent, and the proceeds, with the exception of certain specified amounts, delivered to appellant; that appellant thereafter repudiated the partnership agreement, and appropriated and diverted the remaining animals to his own use to the damage of respondent. The complaint also alleged indebtedness due respondent from appellant in a small amount which was not controverted.

The action was brought in a court of a justice of the peace. Appellant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and upon the further ground that the court did not have jurisdiction because the complaint showed upon its face that a partnership accounting was necessary between the parties, and also upon the ground that appellant did not have capacity to sue. Thereafter, and before the court ruled on the demurrer, a change of venue was ordered to the probate court. The probate court subsequently granted a change of venue and, by consent of counsel, the cause was transferred to the district court of Kootenai county. The district court overruled the demurrer; answer was filed, and upon trial judgment was entered for the plaintiff, respondent herein. Respondent filed a cost bill, to each item of which appellant objected and filed motion for the taxation of costs by the court and also to strike the entire cost bill. The court denied the motion to strike the cost bill and entered an order taxing the costs as set out in respondent's cost bill, with the exception of one item.

The appeal is from the judgment and from the order denying appellant's motion to strike the cost bill and also from the order of the court taxing costs.

The demurrer was properly overruled. A partnership accounting was not necessary to determine the issues. In the case of Karrick v. Hannaman, 168 U.S. 328, 18 S.Ct. 135, 42 L.Ed. 484, the court, speaking through Mr. Justice Gray, said: "A partner who assumes to dissolve the partnership, before the end of the term agreed on in the partnership articles, is liable, in an action at law against him by his copartner for the breach of the agreement, to respond in damages for the value of the profits which the plaintiff would otherwise have received."

See, also, Farwell v. Wilcox (Okl.), 73 Okla. 230, 175 P. 936, 4 A. L. R. 156; Frith v. Thomson, 103 Kan. 395, 173 P. 915, L. R. A. 1918F, 1123; 2 Rowley, Modern Law of Partnership, sec. 753; 30 Cyc. 465; 20 R. C. L. 928.

Appellant's motion to strike the cost bill is based on C. S., sec. 7207, which is in part as follows:

"Costs are allowed of course to plaintiff upon a judgment in his favor in the following cases: . . .

"3. In an action for the recovery of money or damages when the plaintiff recovers $ 100 or over."

The judgment in this case was for $ 83.10. This statute relates to actions commenced in the district court. It has been held that it does not apply in cases tried in the district court de novo on appeal from a justice or probate court. (Lovel v. Joyce, 9 Idaho 386, 74 P. 1073; Roseborough v. Whittington, 15 Idaho 100, 96 P 437.) Neither does it apply in case of an action commenced in a probate or justice court...